The Milwaukee Deputy Sheriffs' Association, hereinafter referred to as the
Association, and
Milwaukee County, hereinafter referred to as the County or the Employer, were parties to a
collective
bargaining agreement which provided for final and binding arbitration of all disputes arising
thereunder. The
Association made a request, with the concurrence of the County, that the Wisconsin
Employment Relations
Commission designate a member of its staff to hear and decide the appeal of Deputy James
Urban's
suspension. The undersigned was so designated. A hearing was held in Milwaukee,
Wisconsin on
November 29, 2012. The hearing was not transcribed. The parties filed briefs and
reply briefs, whereupon
the record was closed on February 1, 2013. Having considered the evidence, the arguments
of the parties
and the record as a whole, the undersigned issues the following Award.

7860

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MA-15198

ISSUE

The parties stipulated to the following issue:

Was there just cause to suspend Deputy James Urban for ten days? If not, what is
the
appropriate remedy?

BACKGROUND

The County operates a Sheriff's Department. The Association is the exclusive
collective bargaining
representative for the Department's deputy sheriffs.

One of the units where deputies can be assigned to work is the civil process unit.
The deputies who
work in that unit are charged with serving legal documents on people. Specifically, they
serve subpoenas,
restraining orders, injunctions, summons and complaints. There is no set amount of time it
takes to
effectuate service. Sometimes, documents can be served in a matter of minutes; sometimes,
it takes longer.
When a deputy serves a legal document on someone, they are supposed to do it in person.
The deputy
is not supposed to leave the document with someone else, or slide it under a door. Instead,
they are
supposed to personally hand the document to the person who is to receive it.

James Urban is a deputy sheriff. He has been with the Department for 18 years.
When this matter
arose, he was assigned to work in the process unit. Prior to the incident involved here, he
had no history
of problems performing that work (i.e. serving legal documents). Additionally, he had not
been counseled
about wasting time or poor work performance as a process server. Prior to the matter
involved herein,
Urban had a clean disciplinary history with the Employer. Specifically, he had received no
written warnings
or suspensions. That changed in 2012 when he was suspended for ten days.

FACTS

This case involves the ten-day suspension just referenced.

On April 5, 2011, Urban was working as a process server on the first shift. That
day, he was
assigned to serve Mark Critton with two restraining orders. At the time, Critton was an
inmate of the
Milwaukee County Jail, but he was not at the Jail. Instead, Critton was being held at St.
Luke's Hospital
in Milwaukee where he was being treated for a serious foot injury. Since Critton was not at
the jail,
deputies were assigned to watch him 24/7 as part of a "hospital watch." The Sheriff's
Department has very
detailed rules which apply to deputies watching inmates in hospitals as part of a "hospital
watch". One of
the rules is that the inmate is supposed to be shackled with restraints. Another rule is that
when an inmate
is in the bathroom, the bathroom door is supposed to be partially open (i.e. not closed). The
deputy who
was responsible for watching inmate Critton at the hospital during the first shift on
April 5, 2011 was
Deputy David Mezwinski.

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MA-15198

Deputy Urban arrived at Critton's hospital room sometime after 1:00 p.m. When
Urban went into
the room, Critton was not in his hospital bed, and the shackles used to restrain him were still
attached to
the bed. That meant that Critton was not in restraints. Urban saw Mezwinski (who he
knew) in the
hospital room, and told him he was there to serve Critton with some papers. Mezwinski
responded by
saying that everything was okay, and that Critton was in the bathroom by himself and had
been there for
awhile because he was constipated. The bathroom door was closed, so neither Urban nor
Mezwinski
could see into the bathroom. While Critton was supposed to be in restraints (and was not),
and the
bathroom door was supposed to be partially open (and was not), Urban did not say anything
to Mezwinski
about either matter. Instead, Urban accepted Mezwinski's assurance that everything "was
okay". Urban
also did not attempt to open the bathroom door to serve Critton with his papers. Urban's
stated reason
for not knocking on the bathroom door and serving Critton with his papers was that he
(Urban) knew that
being constipated is difficult, and he did not want to "exacerbate" Critton's situation. Urban
then waited
in the hospital room with Mezwinski for Critton to come out of the bathroom. Specifically,
he waited there
between 45 minutes and one hour. During that time period, Critton stayed in the bathroom
behind the
closed bathroom door, and Urban and Mezwinski talked to each other in the hospital room.

About 2:00 p.m., the next deputy arrived at the hospital room to relieve Mezwinski
and begin his
shift watching Critton. The next deputy was Deputy Tim Mooney. When Mooney arrived
in the room,
Mezwinski told him (Mooney) that Critton was in the bathroom without restraints and was
constipated.
The bathroom door was still closed. Mezwinski then left the room. Mooney then talked to
Critton through
the closed door, and told him to finish up. While Mooney was talking to Critton, Mooney
heard the sound
of something metal hitting the floor in the bathroom. Mooney immediately opened the
bathroom door and
went inside. Once inside, Mooney searched Critton and secured him without incident; then,
he moved
Critton out of the bathroom. After doing that, Mooney searched the bathroom floor and
found a metal
fork. Mooney then moved Critton back to the hospital bed, where he secured him.

After Critton was secured in the hospital bed, Urban served him with the restraining
orders and left
the hospital room.

. . .

The Employer later opened an internal investigation into the matters referenced
above.
The
investigation was conducted by Lt. Douglas Holton of the Department's Internal Affairs
Division. As part
of his investigation, Holton interviewed Mezwinski, Urban and Mooney. Holton interviewed
Mezwinski
and Urban twice.

On May 9, 2012, Lt. Holton submitted a report known internally as an "Investigative
Brief". In
that report, he recommended that the "disposition" of the "complaints" against Mezwinski,
Urban and
Mooney be "sustained". That is the jargon used in the Department which means that the
employee has
been charged with a rule violation.

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MA-15198

In the portion that report that related to Mezwinski, Holton reached the following
conclusions about
Mezwinski's conduct:

Based on witness statements, along with written entries in the Hospital watch log,
Dep. Mezwinski failed to follow proper policy which states, "When the inmate uses
the
bathroom, the Deputy shall apply belly chains before removing the leg iron or handcuff
attached to the bed. If belly chains must be removed, the Deputy shall call for assistance
from the institution Deputies and apply leg irons." He also failed to properly document his
hospital log, which per policy, should've included bathroom entries along with any issues
that Dep. Mezwinski had with his handcuff key.

Instead, Dep. Mezwinski allowed Critton to use the bathroom door with the door
closed
and without proper restraints for at least 40 minutes. A metal fork would later be located
by Dep. Mooney inside the bathroom. Dep. Mezwinski did not have Critton "under
control" which is a violation of Policy 202.44 Attending Prisoners.

If Dep. Mezwinski had problems with his handcuff key, he should have contacted
dispatch
and requested a back-up squad to assist him. Dep. Mezwinski admitted that he did not.
Dep. Mezwinski's actions put his safety and the safety of other Deputies at serious
risk.

Based on that conclusion, Holton found that Mezwinski committed three department
rule violations and
three county civil service rule violations. Those rules need not be identified here because
Mezwinski's
discipline is not being reviewed herein.

In the portion of that report that related to Urban, Holton reached the following
conclusion about
Urban's conduct:

Dep. Urban admitted that if he would have been the hospital watch Deputy, he would
have
left the door partially open in order to properly supervise an inmate, as is policy. Dep.
Urban observed possible rule violations and failed to question Dep. Mezwinski as to why
the door was not partially open, which would have allowed Dep. Mezwinski to properly
supervise the inmate.

Based on that conclusion, Holton found that Urban committed one department rule
violation and two
county civil service rule violations. The department rule Urban was accused of violating was
202.20. It
provides thus:

202.20 Efficiency and Competence

Members shall adequately perform the duties of their assigned position. In addition,
sworn
members shall adequately perform reasonable aspects of police

The County civil service rules Urban was accused of violating were subparagraphs (l)
and (u) of Rule VII,
Section 4(l). Subparagraph (l) prohibits "Refusing or failing to comply with departmental
work rules,
policies, procedures" and subparagraph (u) prohibits "Substandard or careless job
performance."

In the portion of that report that related to Mooney, Holton reached the following
conclusion about
Mooney's conduct:

Based on the investigation, Dep. Mooney understood that Critton was inside the
bathroom
and not restrained per policy. Dep. Mooney should have questioned Dep. Mezwinski
further about why Critton was not properly restrained. Dep. Mooney should have
immediately contacted a supervisor and had Dep. Mezwinski assist him in safely removing
Critton from the bathroom.

Based on that conclusion, Holton found that Mooney committed the same department
rule violation and
county civil service rule violations as Urban did.

Lt. Holton's findings relative to Deputy Urban were subsequently reviewed by
Inspector Richard
Schmidt. On July 12, 2012, Inspector Schmidt issued a "Notice of Suspension" which
indicated that
Urban was suspended for ten days. The "Notice of Suspension" document repeated verbatim
all of
Holton's findings from the "Investigative Brief", and then added the following final
paragraph:

Dep. Urban also spent a total of one hour and fourteen minutes at St. Luke's Hospital
waiting for this subject while he was in the bathroom. This time could have been better
spent on other work related activities.

Based on the parties' collective bargaining agreement, Urban's suspension was
appealed to
arbitration.

. . .

The record shows that Mezwinski was suspended for 60 days for his conduct on
April 5, 2011.
He did not serve that suspension though because he resigned from the Department. His
resignation date
is not in the record.

The record further shows that Mooney received a written warning for his conduct on
April 5, 2011.

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MA-15198

POSITIONS OF THE PARTIES

Association

The Association's position is that just cause did not exist for Deputy Urban's ten-day
suspension.
The Association asks that the discipline be either rescinded or reduced. It elaborates as
follows.

The Association begins by maintaining that Urban did nothing wrong on the date in
question. As
the Association sees it, Urban's sole job that day was to serve papers on Critton. According
to the
Association, he did his job in that respect because he did, in fact, serve the papers on
Critton. Building on
that, the Association submits that Urban committed no misconduct for which he could be
disciplined.

Next, the Association tries to put Urban's actions in Critton's hospital room an
overall context.
It notes at the outset that Mezwinski was the "watch" deputy that day. The Association
contends that it
was his job ­ and his job alone ­ to supervise Critton while he was in the
hospital and oversee his security
and safety. For whatever reason, Mezwinski let Critton go to the bathroom unattended,
without being in
restraints, and close the door. The Association emphasizes that all that happened before
Urban arrived
at Critton's hospital room. Thus, when Urban arrived, Critton was not in his bed but was
inside the
bathroom with the door closed. While the Association does not explicitly admit that the
conduct just noted
constitutes wrongdoing, it does acknowledge that the Employer had a problem with what
Critton was
allowed to do (i.e. go to the bathroom unattended, without being in restraints, and close the
door). The
Association argues that if a deputy in that hospital room failed to adequately perform their
job, it was
Mezwinski ­ and not Urban. Said more pointedly, any wrongdoing that occurred in
that hospital room is
Mezwinski's fault, not Urban's. Once again, that's because Mezwinski was the "watch"
deputy. That was
his job, and his alone. The Association therefore maintains Urban is not responsible for
Mezwinski's
mistakes.

As part of its argument concerning the foregoing, the Association notes that Urban
has known
Mezwinski for years. According to the Association, Urban's prior work experiences with
Mezwinski led
him to trust Mezwinski. Because of that trust, Urban thought that Mezwinski had a good
reason for
allowing Critton to be in the bathroom with the door closed. Urban also believed that
Mezwinski had
properly searched and secured the bathroom before allowing Critton to use it with the door
closed. Finally,
the Association avers that "nothing bad happened to anyone at all" (as a result of Critton
being in the
bathroom unattended) "other than Critton's attempts to alleviate his constipation being
summarily
interrupted."

Second, the Association addresses the length of time that Urban spent in the hospital
room before
he served Critton the papers. As the Association sees it, the time matter was not the "big
deal" that the
Employer makes it out to be. According to the Association, waiting for long periods of time
before
effectuating service is not uncommon. It notes in this regard that Urban testified he routinely
waits long
periods of time to effectuate service in other cases.

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MA-15198

Building on that, the Association submits that, as an example, if service was being
made on an employee
at a manufacturing facility, Urban might have to wait until the next schedule break in
production before
serving a person. The Association argues that the fact that Urban was required to wait to
effect service
in this instance for 45 minutes was not, in and of itself, wrong or a rule violation.

The Association argues in the alternative that even if Urban did commit workplace
misconduct on
the day in question, there still was not just cause for the level of discipline imposed on him.
Here's why.
First, the Association emphasizes that prior to this case, Urban had a clean disciplinary
record with no prior
discipline of any sort, including suspensions. Second, the Association points out that Urban
is a veteran
employee with 18 years of service. Third, the Association emphasizes that he's worked in
the civil process
unit for five years. During that time, his work as a process server has never been found to
be inefficient and
he has never been previously accused of incompetently performing his duties in any way.
Finally, the
Association characterizes the length of the suspension that was imposed (i.e. ten days) as
excessive and
heavy handed. In its view, the number of days was seemingly chosen at random. The
Association
therefore asks the arbitrator to rescind the ten day suspension and reduce Urban's
punishment. The level
of punishment it suggests as appropriate is a written warning.

County

The County's position is that just cause existed for Urban's ten-day suspension. In
its
view, Urban
committed workplace misconduct on the date in question. Building on that premise (i.e. that
Urban
committed workplace misconduct), the County maintains that the discipline which was
imposed on him for
that misconduct was warranted under the circumstances. It elaborates as follows.

The County characterizes this case as "simple and direct" and maintains that there is
no dispute
about the facts. It summarizes the facts thus. When Urban showed up at the hospital to
serve Critton his
papers, Critton was in the bathroom with the door closed. Urban knew that was wrong and
that the door
should have been partially opened so that the inmate could be watched/supervised by the
deputy. Urban
didn't question Mezwinski about why the door was closed. Urban then waited until Critton
came out of
the bathroom to serve him with his papers. Specifically, he waited about an hour. During
that time period,
Urban did nothing but talk with Mezwinski in the hospital room. He never checked on
Critton in the
bathroom or did anything else to supervise him.

It's the Employer's view that Urban engaged in workplace misconduct and violated
Rule 202.20
via the foregoing actions. It characterizes the Association's contention that Urban did
nothing wrong as
"laughable". Here's why.

First, the Employer avers that when Urban learned that the inmate was behind a
closed bathroom
door, he should have either questioned Mezwinski about it or done something to

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MA-15198

remedy the clearly improper situation. However, Urban didn't do that. Instead, he
did absolutely nothing
to stop the ongoing rule violation. The Employer sees that as problematic because it turned
out that Critton
had a metal fork with him inside the bathroom. The Employer characterizes that as a
"particularly
dangerous situation" because he (Critton) could have used that fork to either harm himself or
others. The
Employer opines that "the threat to the safety of the deputies, hospital employees, patients,
and their visitors
[was] palpable." The Employer maintains that while the threat ultimately didn't materialize,
that doesn't
change the fact that Urban allowed a "particularly dangerous situation" to continue unabated.

As part of its argument on this matter, the Employer contends that at the hearing,
Urban tried to
shift the blame for the closed bathroom door to Mezwinski. The Employer asks the
arbitrator to dismiss
that attempt as unavailing. The Employer asserts that while Mezwinski was the "initial
wrong doer" in this
matter because he was the "watch" deputy, Mezwinski "does not stand alone" because Urban
was in the
room with Mezwinski for an hour. The Employer argues that by being with Mezwinski in
the room for that
long, Urban "effectively became part of the hospital watch." Building on that premise, the
Employer
concludes that Urban could have and should have done something in that time period to
lessen the
potentially dangerous situation (and check on Critton in the bathroom). He didn't though,
and instead
simply stood by as a "spectator". The Employer finds fault with Urban for doing that.

Second, the Employer addresses the fact that by his own admission, Urban then
waited until Critton
came out of the bathroom ­ almost an hour later ­ before he served him with his
papers. The Employer
contends that Urban waited "far too long" to serve the papers on Critton. According to the
Employer, that
was an "inefficient use of his time" because Urban "could have used his time to address
other work related
matters."

Turning now to the level of discipline which was imposed, the Employer argues that
a
ten-day
suspension was warranted under the circumstances. In making that argument, the Employer
relies solely
on what Urban did on the day in question, and repeats the facts already referenced. It makes
no arguments
whatsoever about progressive or comparable discipline, or the length of the suspension
imposed herein.
Instead, it simply requests that the arbitrator give deference to the discipline imposed by the
Inspector, and
uphold Urban's ten-day suspension.

DISCUSSION

The parties stipulated that the issue to be decided here is whether there was just cause
to suspend
Deputy Urban for ten days. My answer to that question is split as follows. I find that the
Employer did
have just cause to discipline Urban for engaging in misconduct on the day in question. I'll
explain why later.
However, I further find that the discipline which the Employer imposed on Urban for that
misconduct (i.e.
a ten-day suspension) is excessive for the reasons noted later. Accordingly, I reduce Urban's
discipline
from a ten-day suspension to a two-day suspension. My rationale follows.

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MA-15198

The threshold question is what standard or criteria is going to be used to determine
just cause. The
phrase "just cause" is not defined in the collective bargaining agreement, nor is there
contract language
therein which identifies what the Employer must show to justify the discipline imposed.
Given that
contractual silence, those decisions have been left to the arbitrator. Arbitrators differ on
their manner of
analyzing just cause. While there are many formulations of "just cause", one commonly
accepted approach
consists of addressing these two elements: first, did the employer prove the employee's
misconduct, and
second, assuming the showing of wrongdoing is made, did the employer establish that the
discipline it
imposed on the employee was justified under all the relevant facts and circumstances. That's
the approach
I'm going to apply here.

As just noted, the first part of the just cause analysis being used here requires a
determination of
whether the employer proved the employee's misconduct. Attention is now turned to making
that call.

While the Employer's "Notice of Suspension" did not explicitly say so, that document
can fairly be
read to charge Urban with two deficiencies in his work conduct on April 5, 2011. Those
alleged
deficiencies will be identified and addressed in the discussion which follows.

Before I identify and address the first charge though, I'm going to review some facts
which, in my
view, help put that charge in context.

I begin by reviewing Mezwinski's conduct. Mezwinski was assigned to watch
Critton
as part of
a "hospital watch". The Sheriff's Department has very detailed rules which apply to deputies
watching
inmates in hospitals as part of a "hospital watch". One of the rules is that the inmate is
supposed to be
shackled with restraints. Another rule is that when an inmate is in the bathroom, the
bathroom door is
supposed to be partially open (i.e. not closed). For whatever reason, Mezwinski let Critton
go to the
bathroom unattended, without being in restraints, and close the door. Not surprisingly, given
the rules just
referenced, the Employer had a problem with how Mezwinski "watched" Critton.
Specifically, the
Employer avers that Mezwinski should not have allowed Critton to go to the bathroom
unattended, without
being in restraints, and close the door. It's the Employer's view that by allowing the
foregoing to occur,
Mezwinski violated the rules just referenced.

While I'm not reviewing Mezwinski's discipline in this case, I find it necessary to
nonetheless
address one aspect of it because that one aspect is linked to Urban's discipline. What I'm
referring to is
this: as was noted at the end of the preceding paragraph, it's the Employer's view that
Mezwinski violated
various departmental rules in his interaction with Critton at the hospital. I have no trouble
accepting that
premise. Thus, for the purpose of discussion, it is assumed that Mezwinski did, in fact,
violate various
departmental rules in his interaction with Critton at the hospital.

Having so found, the focus now turns to a review of Urban's conduct. When Urban
arrived at
Critton's hospital room, Urban saw that Critton was not in his bed, and the shackles

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MA-15198

used to restrain him were still attached to the bed. That meant that Critton was not in
restraints. Then,
Mezwinski told Urban that Critton was in the bathroom by himself. When Urban looked at
the bathroom
door, he could see that the door was closed. What Urban did next (after encountering the
foregoing) can
be succinctly put: he did nothing but talk with Mezwinski.

The first charge which the Employer made against Urban starts with the premise that
Urban
encountered ongoing rule violations when he went into Critton's hospital room. As already
noted, I've
accepted that premise. Next, building on that premise, the Employer faults Urban for not
doing anything
to correct/change the ongoing rule violations which existed in Critton's hospital room.

I begin my discussion on this charge by noting that Urban is an experienced deputy.
As such, he
knew ­ when he encountered all the foregoing ­ that Mezwinski was not
following Department rules dealing
with inmates in hospitals. Taking that point one step further, Urban knew or should have
known that
Mezwinski was violating Department rules by his actions.

The Association contends that Urban's inaction was an acceptable response under the
circumstances. Here's why. First, the Association emphasizes that Mezwinski told Urban
that everything
(with Critton) was okay, and that Urban trusted Mezwinski's professional judgment.
According to the
Association, Mezwinski's assurance, plus the fact that Urban trusted Mezwinski's
professional judgment,
should excuse Urban's inaction. I disagree. It would be one thing if Mezwinski had
specialized knowledge
about Department rules dealing with hospital watches that, for whatever reason, Urban did
not possess.
If that was the case, I could understand Urban deferring to Mezwinski's judgment.
However, as already
noted, that was not the case. Urban knew the rules covering hospital watches, and he knew
that
Mezwinski was not following them. Under these circumstances, any trust that Urban placed
in Mezwinski's
professional judgment was, in a word, misplaced.

Second, the Association contends that Urban is not responsible for Mezwinski's
mistakes because
it was Mezwinski who was the "watch" deputy. I could easily accept this premise if the
record facts dealing
with Urban's conduct were different. For the sake of discussion, let's assume that Urban
came into
Critton's room, served him the papers in the bathroom, and immediately left the room. Had
that happened,
I'd have no trouble finding that Urban wasn't there long enough to fairly share any
responsibility with
Mezwinski for Mezwinski's misconduct. However, that's not what happened because Urban
didn't go
in, serve the papers and immediately leave. Instead, by his own admission, he waited in the
hospital room
for close to an hour. During that time period, Urban did nothing but talk with Mezwinski in
the hospital
room. He never checked on Critton in the bathroom or did anything else to supervise him.
I concur with
the Employer that by being with Mezwinski in the room for that long, Urban effectively
became part of the
Department's hospital watch team (i.e. he became a de facto member of the watch team
along with
Mezwinski). Because of that, Urban should have done something in that time period to
address the rule
violations and potentially dangerous situation that existed (with Critton being in the bathroom
unattended).
He didn't

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MA-15198

though. Consequently, I find that this first charge contains a valid criticism of Urban's
work conduct on
the day in question.

The second charge which the Employer made against Urban deals with the amount of
time Urban
spent in Critton's room. Specifically, the Employer faults Urban for waiting until Critton
came out of the
bathroom ­ almost an hour later ­ before he served him with his papers.

I've decided to begin my discussion on this point by noting that there are no express
time limits for
a deputy to serve papers. That said, none of the examples which Urban cited at the hearing
of instances
where it took a long time to effectuate service are applicable here. That's because in this
instance, Urban
knew exactly where Critton was within seconds of walking into the hospital room. He was,
of course, in
the bathroom behind the closed door.

Faced with that situation, Urban decided he didn't want to simply open the bathroom
door and
serve Critton with his papers while he was on the toilet. Instead, he'd wait and serve Critton
with his
papers after he left the bathroom.

Having made that decision though (i.e. the decision to wait and serve Critton after he
left the
bathroom), the ball was then in Urban's court, so to speak, to move this waiting process
along. He could
have done that by telling Critton he was waiting for him to exit the bathroom, and giving
him some sort of
timeline to comply with. However, Urban didn't do that. Instead, he just waited and waited
and waited
without doing anything to move the process along. As a result, Critton didn't even know
that Urban was
waiting for him to exit the bathroom. By his own admission, Urban waited about an hour
for Critton to exit
the bathroom, at which point Urban finally served him the papers. Not surprisingly, the
Employer contends
that Urban waited too long to serve the papers. I'm hard pressed to disagree. Here's why.
Public
employers have a legitimate and justifiable public relations interest in ensuring that their
employees perform
their work in a timely fashion, or at a minimum, at least give that appearance. The reason
I've decided to
note this basic common sense principle is because Urban seemed oblivious to the way his
waiting could
be perceived, and the stereotype it perpetuated about public employees. Simply put, Urban
should not
have waited as long as he did to serve Critton the papers. Consequently, I find that this
second charge also
contains a valid criticism of Urban's work conduct on the day in question.

The Employer contends that by engaging in the above-noted conduct, Urban violated
Department
Rule 202.20. That rule specifies that deputies are to "adequately perform" their duties. I
find, just as the
Employer did, that Urban failed to "adequately perform" his work duties on the day in
question. It follows
from this finding that since Urban committed a rule violation, he committed misconduct for
which he could
be disciplined.

. . .

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MA-15198

Having so found, the focus now turns to the second part of the just cause analysis
being used here
(namely, whether the employer established that the penalty imposed was appropriate under all
the relevant
facts and circumstances).

I begin by noting that I've arbitrated many suspension appeal cases with these parties
over the
years. In those hearings, what usually happened was that one side or the other offered some
evidence to
support their position that the discipline which the Employer imposed on the employee
involved was either
consistent with, or inconsistent with, the discipline imposed on similarly situated employees.

In this case, all that's in the record is the discipline imposed on Mezwinski and
Mooney. That's
it. Their discipline will be addressed below.

I find that in this case, that lack of evidence cuts against the Employer. Here's why.
When the
Employer imposes a multi-day suspension, it has to base the length of the suspension on
some objective
factors which can withstand arbitral scrutiny. Said another way, the Employer has the
burden of showing
that the punishment it meted out was not excessive. I find it did not meet that burden for the
following
reasons.

First, let's look at Urban's disciplinary record. Arbitrators routinely review the
employee's
disciplinary record when assessing the punishment which an employer has meted out to an
employee. The
record shows that Urban is a long-term employee who, prior to this incident, had a clean
disciplinary
record. What I mean by that statement is that he had no prior reprimands/warnings or
suspensions in his
personnel file. Additionally, he had not been counseled about wasting time or poor work
performance as
a process server. These objective facts militate against a ten-day suspension for a first
offense.

Second, when an employer decides that an employee's misconduct warrants a
suspension of some
sort, they usually start with a relatively short suspension of, say, one or two days. That
didn't happen here.
Instead, the Inspector decided that a suspension of that length was not long enough, and he
imposed a ten-day suspension. At the hearing, the Employer's representatives offered no
explanation regarding why the
Inspector selected the number he selected, or offered an objective basis to justify that
number. That's
problematic, because it gives the appearance that the number of days was selected at random.

Third, the Employer offered no evidence to show that Urban's misconduct was
similar to other
cases where a ten-day suspension was imposed. In making that statement, I'm well aware
that the
Employer imposed a 60-day suspension on Mezwinski for his misconduct. However,
Mezwinski's
misconduct was different from Urban's misconduct. Additionally, it's important to note that
Mezwinski did
not serve that suspension. He resigned before he could serve it. Even if it is assumed that
Mezwinski
resigned to avoid serving the 60-day suspension, his (Mezwinski's) resignation meant that
Urban served
more of a suspension than Mezwinski did.

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Given the foregoing, I find that a ten-day suspension was excessive under the
circumstances.

That finding still leaves open the question of what discipline is appropriate for Urban.
The
Association asks me to reduce Urban's punishment to a written warning. I'm not going to
do that. Here's
why. Were I to do that, Urban would get the exact same punishment as Mooney got. That
would be
patently unfair because Urban's misconduct in this matter certainly exceeded Mooney's. Of
the three
officers involved in this matter, Mooney got the lightest punishment because he was the least
culpable.
Accordingly, I find that Urban's misconduct warrants more severe discipline than what
Mooney got.

After considering all of the above, I find that Urban's misconduct warrants a two-day
suspension.
I arrived at that number via this process: Urban committed two acts of misconduct, and in
my view, each
one warrants a day off. Consequently, Urban's discipline is reduced from a ten-day
suspension to a two-day suspension. The Employer shall make Urban whole for the
eight-day difference between these two
levels (i.e. ten days and two days).

Based on the foregoing and the record as a whole, the undersigned enters the
following

AWARD

1. That there was just cause to discipline Deputy Urban for his misconduct on the
day in
question; and

2. That just cause does not support a ten-day suspension for that misconduct.
That
punishment was excessive. The ten-day suspension is therefore reduced to a two-day
suspension. The
County is directed to make Urban whole for the eight-day difference by paying him eight
days' pay.